IM (Sufficiency of protection)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Storey |
| Judgment Date | 13 February 2007 |
| Neutral Citation | [2007] UKAIT 71 |
| Date | 13 February 2007 |
| Court | Asylum and Immigration Tribunal |
[2007] UKAIT 71
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
C M G Ockelton, Deputy President, Asylum and Immigration Tribunal
Senior Immigration Judge Storey
For the Appellant: Mr A Leventakis, ACS Solicitors
For the Respondent: Mr M Blundell, Home Office Presenting Officer
IM (Sufficiency of protection) Malawi
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1) The only authoritative decision in the case of Bagdanavicius is that of the House of Lords [2005] UKHL 38. Nevertheless Lord Brown's speech in that judgment left undisturbed the propositions set out by Auld LJ in the Court of Appeal [2003] EWCA Civ 1605, which were themselves merely a summary of established principles of case law on sufficiency of protection.
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2)As [55] (6) of Auld LJ's summary makes clear, the test set out in Horvath [2001] 1 AC 489 was intended to deal with the ability of a state to afford protection to the generality of its citizens.
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3) In stating that “[p]rotection shall be regarded as generally provided…”, the wording of reg 4(2) of the Persons in Need of International Protection Regulations (the Protection Regulations) SI 2525/2006 closely mirrors the test set out in Horvath .
The appellant is national of Malawi. This is a reconsideration of a determination of Immigration Judge Hall notified following a hearing on 5 April 2006 dismissing his appeal against a decision dated 17 February 2006 refusing to grant asylum and a decision of 22 February 2006 to refuse leave to enter.
The basis of the appellant's claim was that he was a computer engineer who ran a business based in Blantyre, Malawi selling general electronic merchandise. When importing goods into Malawi he paid freight charge duties, surtax, excise and other miscellaneous charges. On 19 September 2005 he received threatening phone calls from officials of the Malawi Revenue Authority (MRA) alleging that there were discrepancies in his importation paperwork. The appellant asked the MRA to contact the clearing agencies because he had paid all the duties. However, the threats continued and MRA officials visited his shop saying that unless he made further payments they would make difficulties for him. He was called to the MRA offices for an interview. Afterwards the appellant complained to the Commissioner of the MRA, a man who had recently been appointed by the new President of Malawi. As a result of the appellant's complaints, a new joint MRA/Anti Corruption Bureau (ACB) task force was set up. The corrupt MRA officials who had been threatening the appellant were arrested as a result of a sting operation which took place on 2 November 2005 when he handed money to them when they came to his shop. In November 2005, approximately five days after this operation, the appellant received threatening phone calls. They warned that they were aware of the movement of the appellant and his family and would harm them. The appellant reported the matter to the ACB and the police. He also informed his lawyer.
On 6 December 2005 the appellant was called to the police station. It was explained to him that an individual had turned himself in to the police with the story that he had been paid a large sum of money by the National Intelligence Bureau (NIB) to assassinate him. The individual, known as “Jayjay” had decided he did not want to go through with it. The appellant was subsequently informed by a junior police officer that his circumstances were “politically connected” and that the police would not be providing any protection to him. The appellant continued to complain to the police that he and his family were in danger, but still received no protection. Accordingly the appellant and his family decided to flee Malawi, departing on 20 December 2005. Since arrival in the UK he has learned that the prosecution against the MRA officials has been dropped.
In support of his claim the appellant produced before the immigration judge a number of documents. They included a number of newspaper reports. One was the Daily Times of Friday 4 November 2005, which reported the arrest of three MRA officials by the Anti Corruption Bureau (ACB) for soliciting bribes from a “Blantyre based businessman” in a sting operation. A report from The Nation of the same date contained a similar account, adding that the three corrupt officials “will be charged under the Corrupt Practices Act”. The appellant also produced a certificate of registration issued by the MRA showing that he traded as Abacus Systems at an address in Blantyre. There was a letter from the appellant dated 12 December 2005 addressed to his lawyers in Malawi asking that they correspond with the ACB on his behalf in respect of the MRA corruption threats. This letter referred, inter alia, to the appellant being told at the Blantyre police station on 6 December 2005 about the informant known as “Jayjay” who had gone to the police stating he had been paid MK 30,000 by an NIB officer to kill the appellant or cause harm and injury to his wife and children, with a promise of MK 150,000 more on completion of the killing.
Other items of evidence adduced by the appellant before the immigration judge included three which were date stamped by the Officer-in-Charge, Blantyre Police Station. The first was dated 16 December 2005. It stated that the appellant had reported to them that from 10 November 2005 up to the present he had been receiving anonymous phone calls in which threats were made to kill or badly injure him. It continued:
“Seeing this after reporting the matter to the police the police carried out investigations in order to know and have those people but up to now nothing good has come out.
However enquiries are still in progress to track down the culprits.”
There was also a statement by the appellant declared before the same Officer-in-Charge dated 18 December 2005 detailing the anonymous phone calls and threats he began to receive from 10 November 2005 and related events. It ended with the words “I am asking the police to help me in this very serious matter”.
The third document bearing the date stamp for the Officer-in-Charge at Blantyre Police Station was dated 25 April 2006, well after the time the appellant had left Malawi and arrived in the UK. This reiterated that the appellant had begun to receive anonymous phone calls making threats on 10 November 2006. It said police enquiries through telephone networks had produced no results. Unlike the previous letter from the Officer-in-Charge, which had made no mention of the hit man (“Jayjay”) incident, this letter set matters out as follows:
“However while the enquiries was (sic) in progress, someone by the name of Mr J.J. Sachilo, a businessman of Banque, Township in the City of Blantyre approached the police and told them that he was hired by Mr Phiri and Mr Benga, both full particulars not known to injure or kill the report and the Secretary of State giving K30,000 living (sic) the balance of K120,000 which he was promised to be given after the work. Seeing the police carried out some investigations so that he can arrest the said culprit but up to now they are still at large.
However the investigations are still in progress to track down the culprit.”
In his 5 April 2006 statement and elsewhere the appellant stated that these documents from the police station did not give a true or complete picture. The police, he said, were still under the control of the United Democratic Front (UDF) and the previous President. They pretended impartiality “but very clearly refused me protection”. They refused to post a guard at his house despite clear information that he was an assassination target. They refused to place him and his family under protective custody. “They wanted me to be a sitting duck”, he wrote. Their unwillingness to protect him could be seen from the indifference they showed in response to the information they received from the hit man. The latter had told them that the NIB had said they would drop burglary charges against him if he killed or injured the appellant. Initially the police said they were looking into the matter, “but when they realised the NIB was doing this under the orders of the old President they withdrew all support and protection”. He considered that their subsequent letter (dated March 2006) saying that despite their best attempts they could not find the persons responsible, could not be taken at face value.
“So you see the national authorities not only can not provide me with protection but instead they are the agents of persecution (those parts of the government belong to the old President) and the MRA who is DPP controlled has no authorities in these matters.”
Another item of evidence was a statement from the appellant's wife. She stated that the original MRA officials who had attempted to extort money from the appellant had been put into those posts “in order to protect the interests of UDF”. Her husband, she stated, had been targeted because of his open support and friendship with Kazuni ‘Roger’ Kumwenda, who is President of the National Solidarity Movement (NSM or NASOMA), a political party which supported the country's current President (Bingu Wa Mutharika), who was facing great opposition from the United Democratic Front (UDF), the party of the former President Bakili Muluzi.
Her statement added that any business who openly supported a party that opposed the UDF faces serious harm. When her husband sought protection:
“[N]o support of protection was given either to me or my husband, even though we were main witnesses in a very high profile matter. The Regional Police Headquarters simply told my husband to remain at home for a week until advised. This was a very difficult time for me, as I had my little daughter and teenage son in school and I...
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